Shahzada Khan S/O Aziz Khan And 2 Others v. State Of Mah. Thr. Pso Sakkardara Dist.Nagpur

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR Criminal Application (ABA) No.786 of 2021 Shahzada Khan s/o Aziz Khan and others,

Versus

State of Maharashtra, through P.S.O. Sakkardara, Nagpur Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order Shri D.N. Mehta, Advocate for applicants.

Shri V.A. Thakare, A.P.P. for non-applicant/State CORAM : ANIL S. KILOR, J.

DATED : 11 th MARCH 2022 The applicants are seeking anticipatory bail in Crime No.437 of 2021 registered with Sakkardara Police Station, Nagpur for the offences punishable under Sections 384, 386, 420, 467, 468, 471, 447, 504, 506 and 120-B of the Indian Penal Code. 2.

The case of the prosecution is that, on 31/08/2021, one Amjad Hussain, S/o. Gulab Hussain, r/o. Bada Tajbagh, Nagpur has alleged that he is resident of the address given and staying along with his mother, wife and four daughters. He has a house admeasuring 8000 sq.ft having clay tiles, opposite the office of Tajbagh old Trust. At that time, Baba Tajuddin Aauliya came there. They were having only two houses and Baba Tajuddin Aauliya was regularly sitting over there. After the death of Tajuddin Baba, Tajuddin Baba Durgah was established and his grand-father and father were working as Khadim and he also works as Khadim at Durgaha. Adjacent to his house, there

were six shops wherein they were running Tea and snacks business. His father was the only son of his grand-father and he is having elder sister Taj Sultana, brother Iqbal Hussain another sister Taj Tabbasum. He is the youngest son.

3.

In the year 1991, they along with their father constructed a pacca cement concrete house behind their house and out of six shops, his father had rented out five shops and in one shop he (complainant) was running PCO., STD booth and after marriage of his sister Taj Sultana and Taj Tabbasum, they were also residing in his house along with their respective husbands. So, his father gave house for residence to both the sisters. His elder brother Iqbal died in the year 1991 and father died in the year 1994.

4.

Ajij @ Pappu Khan- father of applicant/ accused was a peon in Darbar of Tajuddin Baba. He was having seven sons, Shahzad Amjad, Firoz @ Abu and Iga Khan are the hooligan in Tajbagh area. They indulged in illegal possession of the property; taking hapta (gIrk) from the people, the shopkeepers and restaurant owner of the area and they were always accompanied by their gang. By creating a dread in the locality, they extort money and Shahzad and his brother were threatening to kill people who would try to raise voice against them. A body of nine persons was in the Trust, but the accused Shahzad and his people were doing hooliganism and pressurize the trustees for getting the work done according to their wish and as such six members of the Trust had under fear, resigned.

5.

In or about 2006, complainant was having five tenants, who were regularly paying rent to him and because of the mobile phones, his business of STD booth was running poorly and, therefore,

his family was dependent on the rent. The first shop was rented out to Saiyad Ali, who was running a bakery; second shop was rented out to Riyaz Hussain who would sell eggs and Omlet, in 3rd shop, Sabir run cassette shop and pan kiosk, in the forth shop, Jamil Ahamad @ Jumman Baba was doing business of sell of Biryani and snacks and 5th shop was rented out to Nisar Hussain, who run vegetable shop. He was good relations with his tenants but in February, 2006, he did not get the rent from them.

6.

On 10/02/2006, when he went to demand rent to his tenants, they told him that accused Shahzadkhan along with his brother told all the shopkeepers that they have purchased these shops and they will take rent and in case anybody pays rent to the complainant, he will have to lose his life and, therefore, the tenants have not paid rent to him. He informed it to his family members and on next day, along with his brother-in-law, they went to the house of Shahzadkhan, who was standing in front of his house and without complainant uttering anything, Shahzadkahn told him to inform the tenants that he has purchased all the shops and will take rent and he should also sell his house to him, which will be demolished after sometime. He will pay them handsome amount as well as another place.

7.

Since the house and the shops were from the time of his grand-father and father, he flatly refused to sell them. That time, 3-4 brothers of Shahzadkhan abused him in filthy language and threatened him that he is the last man of the house, which can also be eliminated. From there, they came back to his house, discussed about it but since

he was alone male with 4 daughters, considering his family, he stopped taking rent from the shopkeepers.

8.

In the year 2007, his six shops were forcibly usurped by accused Shazadkhan and his brothers by giving them treats to kill and started taking rent. He was not having any source of earning. So, he along with his two sisters took loan from people and on Thakur Plot road, near his house constructed a cement concrete shop where his sister Taj Tabbasum was running a cloth shop and sister Taj Tabbasum was running a Boutique. He was running a grocery store. 9.

In about 2008, Shahzadkhan sent his brother Firoz @ Abukhan to the shop of his sister Taj Sultana, who asked to his sister sell all the shops and house to them or give them free. At that time his sister called him, Abu asked his what would be the price of the property; he did not give any answer, on that Firoz @ Abukhan told him that he will give Rs.4 lacs and left the place. Thereafter, accused took possession of the hall which was behind his shop. When he asked Shahzadkhan, Firoz @ Abukhan to vacate the shops, they used to abuse him in filthy language, threaten to kill him and drive him away. So, the accused have taken illegal possession of six shops and house since about 2010 and taking rent also.

10.

In 2010, there was order of Government for Beautification of Tajbagh area and at that time by putting pressure on Tajuddin Baba Trust, Shahzadkhan has got appointed himself as a supervisor to forcibly get the premises vacated by the people. Due to it, Shahzadkhan, Firoz @ Abukhan, Amjad Khan, Iga Khan and their associates started threatening the people to vacate shops and houses.

11.

On 14/06/2010, without any intimation, the accused Shahzadkhan along with his brothers, by using a JCB machine, demolished his house and took away household articles without their permission. Since his family was not having any place for residence, he started residing in a rented house. After some days, the Trust made declaration that shops will be allotted to the persons who were having their shops in Tajbag area. Since, no shop was received, the shop keepers filed application before Collector. Then a shopping complex was constructed by Nagpur Improvement Trust at that place comprising 130 to 150 shops and the office of Collector started processing allotment of the shops. From the Collector office, he should have got five shops, but the accused Shahzad, Firoz @ Abu and other brothers by changing the record of the Trust and creating pressure on them only registered three newly constructed shops in the name of complainant and his family and their remaining shops, by cheating, the accused got registered in their name in the Trust. 12.

Then accused Shahzad and people of the trust informed the poor people that the persons who have lost their houses, they will get 1000 sq.ft. Plot from the Trust in Mela Ground, Kabrastan road, Tajbag, Nagpur but money of Rs.1 lac for each plot will have to be deposited with Shahzad, his brother Firoz @ Abukhan, applicant/Amjadkhan and Iga Khan. Somehow his sister Taj Sultana managed Rs.1 lac and gave it to Shahzadkhan. Then he gave 600 sq.ft. open plot at Mela ground, where his sister constructed house and started residing. Similarly, his sister Taj Tabbasum in 2016 paid Rs.1 lacs to accused Firozkhan @ Abu for residing and then Shahzadkhan gave 1000 sq.ft open plot at Mela Ground, Kabrastan road, Tajbag, Nagpur to her, where she by obtaining loan constructed a pacca house

but in 2018, Government, through Nagpur Improvement Trust declared it illegal and demolished all the houses. As such, accused Shahzadkhan, Firoz @ Abukhan, applicant-Amjadkhan and Iggakhan have cheated his sister by taking Rs.1 lac each. 13.

In the year 2018, from Collector office, he came to know that 5 shops were allotted to him, however from the Trust he got only two shops and when he checked with the Trust, he came to know that his shops were kept by accused Shahzadkhan, Firozkhan @ Abu, Amjadkhan for themselves. When he asked Firozkhan @ Abu about it, he told him that only two shops are kept for complainant and remaining shops for Amjadkhan, Igakhan and also stated that in coming future in Tajbag area all the shops would belong to them and if he wants to run the shop, he will have to pay Hapta of Rs.1,000/- per month, otherwise, he will not be in a position to run the shop.

When he made inquiry at Collector office and Trust, he came to know that on the basis of their hooliganism, the accused created pressure on the administration of the Trust and by forgery created bogus documents in the name of brothers of Shahzadkhan and got the shops in their name. When he started making inquiry everywhere, Shahzadkhan called his sister Taj Tabbasum and told her that if shop is required, Rs.50,000/- will have to be paid. At that time, his sister paid Rs.50,000/- to Shahzadkhan and took one shop, but he came to know later on that shop given to his sister in fact belonged to him and by making false statement Rs.50,000/- were taken from his sister. 14.

In 2018, he started running a grocery shop in the shop allotted to him, but Shahzadkhan, Firozkhan @ Abu and their brothers every month would come to take Hapta. Initially because of fear, he paid

them money, but as the shop was in a Mall, it was not fetching proper income. Similarly, Firozkhan @ Abu's associates used to pick up anything from his shop, therefore, he stopped paying Hapta to them but they are harassing him for it.

15.

Based on his complaint, Crime No.437 of 2021 for the aforesaid offences has been registered at police station Sakkardara, Nagpur. 16.

Shri Mehta, learned counsel for the applicants submits that the First Information Report was registered out of the animosity to falsely implicate the applicants in the alleged offence, whereas, they have no way connected with the alleged offence.

17.

It is submitted that there is no material available on record to show that as alleged in the First Information Report, the applicants are in possession of any shops and in absence of any incriminating material, the applicants have been made scapegoats though they have no connection with the alleged offence.

18.

It is submitted that there is a delay of more than 15 years in lodging the report and no explanation has been offered for such delay. It is submitted that the Division Bench of this Court has found substance in Criminal Application No.174 of 2022 filed by the applicants under Section 482 of the Code of Criminal Procedure for quashment of FIR and therefore, notices were issued. It is submitted that the said factor may be taken into consideration while considering the prayer of the applicants for grant of pre-arrest bail. 19.

It is submitted that on 22.11.2021, by way of ad interim anticipatory bail, the applicants were granted ad interim protection. It is further submitted that the applicants attended the police station on

every Sunday in between 12.00 noon to 2.00 p.m. till the charge-sheet was filed. After filing the charge-sheet, it was orally informed that the attendance of the applicants is no further required. It is further submitted that as the custody of the applicants is not necessary and as they have not misused the liberty, the ad interim anticipatory bail granted by this Court vide order dated 22.11.2021, may be confirmed. 20.

On the other hand, Shri Thakare, learned APP strongly opposes the application and submits that the custody of the applicants is necessary, in view of the fact that the applicants are involved in the alleged offence.

21.

The learned APP fairly states that the charge-sheet is filed in this case. However, he submits that there is terror of the brothers of the applicants in the area namely, Tajbagh, Nagpur and because of the same, the people could not come muster courage to forward to make complaint against the main accused and his brothers and other relatives. It is submitted that if the applicants are released on bail, the applicants would pressurize the prosecution witnesses and may tamper the prosecution evidence by using their influence. 22.

The learned APP further submits that it is a prerogative of the Investigating Officer as regards the custodial interrogation, as an arrest is the part of process of investigation intended to secure several purposes. It is submitted that in such situation, it may be necessary to curtail their freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent their disappearance, to maintain law and order in the locality. For this purpose, he has placed

reliance in the judgment of the Hon'ble Supreme Court of India in the case of P. Chidambaram Vs. Directorate of Enforcement1. 23.

It is alleged that the applicants are the a member of organized crime syndicate. The police have applied provisions of the Maharashtra Control of Organized Crime Act, 1999 (in short "MCOCA Act") against the applicants and an approval is granted under Section 23(1)(a) of the MCOCA Act and as such, he prays for rejection of the present application.

24.

The learned APP further points out that there are various criminal antecedents and criminal cases were filed against the accused, which are as follows:

List of Crimes against Shahzad Khan s/o Aziz Khan/Applicant No.1 Sr.

No.

Name of Police Station.

Crime No.

Section Sakkardara 72/2008 Sections 307, 143, 147, 148, 149, 294, 506(B) of IPC Sub Section 4/25 of the Arms Act and Section 135 of the Bombay Police Act.

Sakkardara 459/2000 Sections 307, 143, 147, 148, of the IPC Sub Section 4/25 of the Arms Act.

Sakkardara 79/2010 Sections 324, 143, 147, 148, 149 of the IPC Sakkardara 429/2021 Sections 384, 386, 467, 468, 471, 447, 120 (b) of IPC Sakkardara 437/2021 Sections 384, 386, 420, 467, 468, 447, 120 (b) of IPC (2019) 9 SCC 24

List of Crimes against Amjad Khan s/o Aziz Khan/Applicant No.2 Sr.

No.

Name of Police Station.

Crime No.

Section Sakkardara 810/2000 Sections 143, 336, 427, 506-B, 379 of IPC.

Sakkardara 72/2008 Sections 143, 147, 148, 149, 307, 294, 506-B of IPC and 135 of Bombay Police Act Sakkardara 3177/2008 Sections 4, 5 of Bombay Prevention of Gambling Act, Sakkardara 79/2010 Sections 143, 147, 149, 324 of IPC Sakkardara 61/2012 Sections 323, 385, 294, 506, 34 of IPC.

Sakkardara 221/2013 Sections 307, 34 of IPC and Section 4 r/w Section 25 of the Arms Act and Section 135 of Bombay Police Act Sakkardara 421/2021 Sections 294, 506-B of IPC.

Sakkardara 428/2021 Sections 386, 294, 506 (2) 34 of IPC Sub Section 4/25 of Arms Act.

Sakkardara 429/2021 Sections 384, 386, 467, 468, 471, 477 and 120-B of IPC.

Sakkardara 437/2021 Sections 384, 386, 420, 467, 468, 471, 447, 120-B, 504, 506 of IPC.

Sakkardara 525/2021 Sections 204, 506(2), 34 of IPC.

Sr. No.

Crimes against Iqbal @ Igga Khan so/ Aziz Khan/Applicant No.3 1.

Police Station Sakkardara, Crime No.3197/2007, Section 160 of the IPC.

2.

Police Station Sakkardara, Crime No.72/2008 Sections 143, 147, 148, 149, 307, 294, 506(b) of the IPC and 135 Bombay Police Act.

3.

Police Station Sakkardara, Crime No.3177/2008, Sections 4 and 5 Bombay Prevention of Gambling Act, 1887. 4.

Police Station Sakkardara, Crime No.307/2011, Sections 294, 506(b), r/w Section 34 of the IPC.

5.

Police Station Sakkardara, Crime No.429/2021, Sections 384, 386, 467, 468, 471, 477 and 120(b) of the IPC. 24.

In reply to the submissions of the learned APP, the learned counsel for the applicants submits that the criminal antecedents are relevant only after considering the role of the applicants/accused in the present case. It is submitted that from the material available on record, there is no prima facie incriminating material available, therefore, the Court may not give weightage to the criminal antecedents. 25.

In the above referred background, I have perused the case diary and gone through the judgment in the case of P. Chidambaram (Supra).

26.

In the backdrop of the allegation of having terror of the applicants and also in the backdrop of criminal antecedents of the applicants and their and other family members, it is necessary to consider the observations made by the Hon'ble Supreme Court of India in the case of P. Chidambaram (Supra), which read thus:

72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individuals personal liberty and to protect him

from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India. 73....

74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individuals right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under: (SCC P. 189, para 6)

6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a

responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:-

19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation.

The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.

76. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have

been made only with the object of injuring or humiliating the applicant by arresting him or her.

77. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, the Supreme Court held as under:-

19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305.)"

27.

Thus, it is clear that a delicate balance is required between the two rights - safeguarding the personal liberty of an individual and the societal interest. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes, the accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail her freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent her disappearance, to maintain law and order in the locality. For this or other reasons, arrest may become an inevitable part of the process of investigation.

28. The Hon'ble Supreme Court of India, in the above referred judgment also observed that while dealing with an anticipatory bail, the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully.

29. It is further held that the anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicants have falsely been enroped in crime and did not misuse the liberty.

30. In the case in hand, there is a delay of about 15 years in lodging the report. However, the justifiable explanation has been given for such delay. The explanation is that because of the terror of the accused persons in the area of Tajbagh, a delay has been caused. The criminal antecedents of the applicants and their brothers and family members, sufficiently support the explanation given by the complainant. 31.

I therefore, find substance in the submissions of the learned APP that the custody of the applicants is necessary to know various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime.

32. I further find substance in the submission of the learned APP that looking to the terror of the applicants in the area of Tajbagh, it is necessary to curtail their freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons

connected with the victim of the crime, to prevent disappearance of the applicants and to maintain law and order in the locality.

33. Thus, in this case, I am of the opinion that for the reasons stated above, the arrest of the applicants, would become an inevitable part of the process of investigation. In that view of the matter, I am not inclined to allow this application.

34. Moreover, sanction under the provision of Section 23(2) of the MCOC Act against the applicants is pending.

35. At this stage, the learned counsel for the applicants prays for extension of the ad interim protection for two weeks.

36. The Hon'ble Supreme Court of India, in the case of Nathu Singh and Ors. vs State Of Uttar Pradesh and Ors., decided on 28th May, 2021, in Criminal Appeal No.522 of 2021, has observed thus: "24. We cannot be oblivious to the circumstances that Courts are faced with day in and day out, while dealing with anticipatory bail applications. Even when the Court is not inclined to grant anticipatory bail to an accused, there may be circumstances where the High Court is of the opinion that it is necessary to protect the person apprehending arrest for some time, due to exceptional circumstances, until they surrender before the Trial Court. For example, the applicant may plead protection for some time as he/she is the primary caregiver or breadwinner of his/her family members, and needs to make arrangements for them.

In such extraordinary circumstances, when a strict case for grant of anticipatory bail is not made out, and rather the investigating authority has made out a case for custodial investigation, it cannot be stated that the High Court has no power to ensure justice.

powers under Article 142 of the Constitution to pass such an order.

25. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438,Code of Criminal Procedure, particularly, the proviso to Section 438(1), Code of Criminal Procedure, and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one." 37.

In the light of the above said observations, the balance is to be made between the concerns of the Investigating Agency, the complainant and the society at large with the concerns/interest of the applicants. In this case, as observed herein above, the concerns of the Investigating Agency and the society at large is important and therefore, such request cannot be accepted.

38. Accordingly, I pass the following order:

The application is rejected.

[ANIL S. KILOR, J.] nd.thawre by NIRANJAN DOMAJI THAWRE Date: 2022.03.11 15:39:22 +0530 NIRANJAN DOMAJI THAWRE